Grant v. Kamehameha Schools/Bernice Pauahi Bishop Estate et al

Filing 85

APPENDIX of Unpublished Cases in support of 84 Opposition by Jane Doe, John Doe (Attachments: # 1 Exhibit Bou-Matic Decision, # 2 Exhibit J.G. Boswell Tomato Co. Decision, # 3 Exhibit Lenscrafters Decision)(Stein, Jerry) Modified on 10/17/2008 (Benson, A).

Page 1 2 0 0 8 U.S. Dist. LEXIS 66103, *

LE X SE E J. G. BOSW E L L TOM A T O COM P A N Y - KERN, LLC (formerly known as RIO B R A V O TOM A T O COM P A N Y , LLC), a California limited liability company, P l a in t if f , v. PRIVATE LABEL FOODS, INC., a New York corporation; PRIVATE L A B E L FOODS OF ROCHESTER, INC., a New York corporation, and DOES 1 to 5 0 , inclusive, Defendants. 1 :0 8 -C V -0 0 6 2 0 -O W W -S M S U N I T E D STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF C A L IF O R N IA 2 0 0 8 U.S. Dist. LEXIS 66103

J u ly 31, 2008, Decided August 4, 2008, Filed C O U N S E L : [*1] For J. G. Boswell Tomato Company K e r n , LLC, (formerly known as Rio Bravo Tomato C o m p a n y , LLC), a California limited liability company, P l a in tiff: Jim D. Lee, LEAD ATTORNEY, Griswold, L a S a lle , Cobb, Dowd & Gin, LLP, Hanford, CA. F o r Private Label Foods, Inc., a New York corporation, D e fe n d a n t: Ryan D. Fischbach, LEAD ATTORNEY, B a k e r & Hostetler Llp, Los Angeles, CA. F o r Private Label Foods of Rochester, Inc., a New York c o r p o r a tio n , Defendant: Margaret Rosenthal, Ryan D. F i s c h b a c h , LEAD ATTORNEYS, Baker and Hostetler L L P (LA), Los Angeles, CA. J U D G E S : Oliver W . W a n g e r , UNITED D I S T R I C T JUDGE. O P I N I O N BY: Oliver W . W a n g e r O P IN IO N M E M O R A N D U M D E C I S I O N AND ORDER D E N Y I N G DEFENDANT'S MOTION TO DISMISS, A N D , IN T H E A L T E R N A T I V E , G R A N T I N G T R A N S F E R VENUE (Doc. 7) 1 . INTRODUCTION Plaintiff J.G. Boswell Tomato Company-Kern, LLC, ( " B o s w e ll" ) alleges three breach of contract claims a g a in s t specially appearing Defendant Private Label F o o d s of Rochester Inc. (Erroneously sued as Private L a b e l Foods, Inc., a dissolved corporation)("Private L a b e l" ) . Private Label moves to dismiss for lack of p e r s o n a l jurisdiction under Fed. R. Civ. P. 12(b)(2). A l t e r n a t i v e l y , Private Label moves for an order to tr a n s fe r this action to the W e s te r n [*2] District of New STATES Y o r k pursuant to 28 U.S.C. § 1404(a) for convenience of th e parties and witnesses. 2 . JURISDICTION Removal jurisdiction to the federal court is invoked u n d e r 28 U.S.C. 1442; or diversity of citizenship 28 U .S .C . 1332 based on the citizenship of the parties in d iffe r e n t states, and the amount in controversy in excess o f $ 75,000.00. Plaintiff is a California LLC, and D e f e n d a n t is a New York corporation. The amount in c o n t r o v e r s y exclusive of interest and costs exceeds $ 7 5 ,0 0 0 .0 0 . 3 . BACKGROUND A . Procedural History B o s w e ll originally filed its Complaint on March 21, 2 0 0 8 in the Superior Court for the State of California in a n d for the County of Kern. (Doc. 2, Compl.) Private L a b e l made a special appearance and removed this case to Federal Court on May 2, 2008. (Doc. 2, Notice of R e m o v a l. ) Private Label then filed a M o t i o n to Dismiss, o r , in the alternative, to Transfer Venue on M a y 9, 2008. ( D o c . 7, Def.'s Mot. Dismiss) B o s w e ll filed an O p p o s i t i o n on July 3, 2008. (Doc. 11, Pl.'s Opp'n.) P r iv a te Label filed a Reply to Boswell's Opposition on J u l y 14, 2008. (Doc. 13, Def.'s Reply.) B . Factual History P la i n tiff Boswell is a limited liability company o r g a n i z e d under the laws [*3] of the State of California, w h i c h alleges three breach of contract actions against D e f e n d a n t Private Label, a New Y o r k corporation with its principle place of business in Rochester, New York. ( C o m p l . P 1; Pl.'s Opp'n 2.) B o s w e l l , a supplier of processed tomato products, is

Page 2 2 0 0 8 U.S. Dist. LEXIS 66103, * lo c a te d in Buttonwillow, Kern County, California. (Pl.'s O p p 'n 1.) Defendant Private Label Foods is a New York c o r p o r a ti o n , conducting business in Rochester, New Y o r k . (Compl. P 2; Def.'s Mot. Dismiss 1.) Private Label m a n u f a c tu r e s and sells "private label" food products such a s salad dressings, cocktail sauces, marinades, barbeque s a u c e s , pasta sauces, salsa, wing sauces, and hot sauces. ( D e f.'s Mot. Dismiss 1.) Private Label purchases p r o c e s s e d tomato products for the production of its p r o d u c ts . (Pl.'s Opp'n 1-2.) From 2003 through 2006, D e f e n d a n t Private Label entered into several contracts w ith Plaintiff Boswell to purchase over $ 2.5 million w o r th of processed (sliced and diced tomatoes and t o m a t o paste) tomato product. (Pl.'s Opp'n 2.) T h i s dispute arises out of the last three contracts e n te re d into between the parties in the 2006-2007 p a c k i n g season. (Pl.'s Opp'n 2.) Boswell alleges Private L a b e l breached the [*4] contracts by refusing to pay the a m o u n ts owed for tomato products sold and delivered, r e s u l t i n g in total alleged damages suffered by Boswell in t h e amount of $ 633,127.97. (Compl. PP 6-7.) B o s w e l l alleges the parties entered into a written a g r e e m e n t on March 31, 2006, in K e r n County, C a lifo r n ia for the sale/purchase of 1,500,000 pounds of to m a to paste product for$.308 per pound, for delivery by J u n e 30, 2007, F.O.B. Buttonwillow, California. (Compl. P P 8-13, Ex. A.) This contract included a $ 90 deposit for t h e shipping bins provided by Boswell which was r e fu n d a b le upon return of the bins in "useable" condition. ( C o m p l . Ex. A) Boswell alleges it has performed all c o n d i t io n s , covenants, and promises required on its part; a n d that Private Label has failed to pay $ 1,560.10 as per t h e terms of the agreement. (Compl. PP 11-13.) B o s w e ll alleges the parties entered into an additional w r i t t e n agreement on March 31, 2006, in Kern County, C a lifo r n ia for the sale/purchase of 1,500,000 pounds of to m a to paste product at $ .333 per pound, for delivery by J u n e 30, 2007, F.O.B. Buttonwillow, California. (Compl. P P 14-16, Ex. B.) This contract included a $ 90 deposit f o r the shipping bins provided by [*5] Boswell which w a s refundable upon return of the bins in "useable" c o n d i tio n . (Compl. Ex. B.) Boswell alleges it has p e r fo r m e d all conditions, covenants, and promises r e q u i r e d on its part and Private Label has failed to pay $ 1 7 2 , 0 4 8 . 7 2 as per the terms of the agreement. (Compl. P P 17-19.) O n August 21, 2006, Boswell alleges the parties e n t e r e d into a third written agreement in Kern, County, C a lifo r n ia for the sale/purchase of tomato paste product fo r delivery by June 30, 2007, F.O.B. Buttonwillow, C a lifo r n ia . (Compl. PP 14-16, Ex. B.) This contract in c lu d e d a $ 90 deposit for the shipping bins provided by B o s w e l l which was refundable upon return of the bins in " u s e a b le " condition. (Compl. Ex. B) B o s w e l l alleges it has shipped 77,639 pounds of to m a to paste product plus bins for which Private Label s t i l l owes $ 4,245.00. (Compl. P 23.) Boswell alleges it p e r fo r m e d all conditions, covenants, and promises r e q u i r e d on its part and Private Label failed to take d e l iv e ry of a remaining 2,922,361 pounds of product b e fo r e the June 30, 2007 deadline, for which Boswell had to mitigate damages by allocating the product to other p u r c h a s e r s for a price/market differential of $.15 per p o u n d . (Compl. [*6] PP 24-25.) Boswell alleges it lost $ 4 3 8 ,3 5 4 .1 5 as a result, and additionally, Private Label fa i le d to pay for or return 188 bins pursuant to the c o n tr a c t resulting in a loss of $ 16,920.00. (Compl. PP 2 5 -2 6 .) Boswell seeks compensatory damages for breach o f these three contracts in the sum of $ 633,127.97 plus in te re st on this amount from and after November 10, 2 0 0 7 . (Compl. P 26.) D e fe n d a n t Private Label alleges that in 2003, P l a i n t i f f Boswell hired a New York Sales Broker to o b t a i n Private Label's business. (Def.'s Mot. Dismiss 2.) P r iv a t e Label negotiated with this broker in New York a n d after a sale Private Label paid the broker a c o m m is s io n . (Def.'s Mot. Dismiss 2.) At about this time B o s w e ll sent its president and vice-president to New Y o r k to tour Private Label's facility and solicit the sale of B o s w e l l ' s p r o d u c t s . (D e f . ' s M o t . D i s m i s s 2 . ) A d d itio n a lly , Boswell's vice-president visited on another o c c a s i o n on behalf of Boswell. (Def.'s Mot. Dismiss 2.) P r i v a t e Label executed additional agreements with B o s w e ll, continuing to use the New York broker in the n e g o t i a t i o n s . (Def.'s Mot. Dismiss 2.) Boswell sent its E a s t Coast Sales Manager, John Nestvogel, to New York to solicit business [*7] from Private Label on at least six o c c a s io n s . (Def.'s Mot. Dismiss 2.) Mr. N e s tv o g e l's name is on the August 14, 2006 contract attached to the C o m p l a i n t as Exhibit C. (Compl. Ex. C.) P r iv a te Label contends the contracts were executed i n New York, after which it faxed or mailed the contracts to California. (Def.'s Mot. Dismiss 2.) Private Label s ta te s it has never had a location for the transaction of b u s i n e s s outside of New York. (Def.'s Mot. Dismiss 1.) P r i v a t e Label has never had in California, any agents, e m p lo y e e s , officers, directors, physical offices, plants, b a n k accounts, tangible property, or contact with persons l o c a t e d in California to act on its behalf with respect to m a r k e t i n g , distributing, or servicing any of Private L a b e l 's goods or services. (Def.'s Mot. Dismiss 1-2.) P r i v a te Label representatives have never visited C a lifo r n ia in connection with the contracts at issue. ( D e f.'s Mot. Dismiss 2.) Private Label has not attended a n y trade shows, expositions, or conferences in C a l ifo r n ia and conducts no advertising or marketing t a r g e te d or purposefully directed at potential customers i n California, and its principals have never traveled to C a l ifo r n ia to conduct business on [*8] behalf of Private L a b e l . (Def.'s Mot. Dismiss 2-3.) Private Label is not and h a s never been registered with the California Secretary of

Page 3 2 0 0 8 U.S. Dist. LEXIS 66103, * S t a te to conduct business in California. (Def.'s Mot. D i s m i s s 3.) P r iv a te Label disputes the amount of damages s o u g h t in the complaint, but contends that the dispute s h o u ld not be litigated in California because the court la c k s in personam jurisdiction over Private Label and/or b e c a u s e the Eastern District of California is an i n c o n v e n i e n t forum. (Def.'s Mot. Dismiss 3.) 4 . STANDARD OF REVIEW A . Personal Jurisdiction P la i n tiff bears the burden of establishing that the C o u r t has personal jurisdiction. See Fed. Deposit Ins. C o r p . v. British-Am. Ins. Co., 828 F.2d 1439, 1441 (9th C i r . 1987). W h e n a defendant moves to dismiss for lack o f personal jurisdiction, the plaintiff is "obligated to c o m e forward with facts, by affidavit or otherwise, s u p p o r tin g personal jurisdiction." Amba Mktg. Sys. v. J o b a r Int'l, 551 F.2d 784, 787 (9th Cir. 1977). The court r e v ie w s the pleadings and affidavits, upon which the p l a in tiff need only make a prima facie showing that p e r s o n a l jurisdiction exists. See Graphic Controls Corp. v . Utah Med. Prods., 149 F.3d 1382, 1383 n.1 (Fed. Cir. 1 9 9 8 ). [*9] The court construes the pleadings and a f fi d a v i t s in the light most favorable to the plaintiff. See id . Personal jurisdiction exists if permitted by C a l i fo r n i a 's long-arm statute and federal due process. See id . at 1385. Pursuant to Cal. Code of Civ. P. § 410.10, C a lifo r n ia 's long-arm statute reaches as far as the Due P r o c e s s Clause permits i.e. to the extent that m a i n te n a n c e of a suit in California would "not offend t r a d i t io n a l notions of fair play and substantial justice." C a l . Civ. Proc. Code § 410.10 (2008); Int'l Shoe Co. v. S ta te of Wash., Office of Unemployment, 326 U.S. 310, 3 1 6 , 66 S. Ct. 154, 90 L. Ed. 95 (1945). Two categories o f jurisdiction exist: general or specific jurisdiction. See L a k e v. Lake, 817 F.2d 1416, 1420-21 (9th Cir. 1987). B . Venue P u r s u a n t to U.S.C. § 1404(a), the decision whether t o transfer venue is at the discretion of the district court. S e e Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9 th Cir. 2000). Under § 1404(a), the district court c o n s id e rs each of the factors: "For the convenience of p a r tie s and witnesses, in the interest of justice, a district c o u r t may transfer any civil action to any other district or d i v i s i o n where it might have been brought." 28 U.S.C. § 1 4 0 4 (a ) (2008); [*10] Ventress v. Japan Airlines, 486 F . 3 d 1111, 1118 (9th Cir. 2007). 5 . PERSONAL JURISDICTION ANALYSIS A. General Jurisdiction "General jurisdiction exists when a defendant is d o m ic i le d in the forum state or his activities there are 's u b s ta n tia l ' or 'continuous and systematic.'" Panavision I n t'l. , L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1 9 9 8 ) (citing Helicopteros Nacionales de Colombia, S.A. v . Hall, 466 U.S. 408, 414-16, 104 S. Ct. 1868, 80 L. Ed. 2 d 404 (1984)). Defendant Private Label argues it is not s u b j e c t to general jurisdiction in California for multiple r e a s o n s . These reasons include Private Label's in c o rp o r a tio n in New York; its principle place of b u s i n e s s in New York; it has no agents, officers, d ir e c to r s , employees, or property in California; it has not r e g is te r e d with the California Secretary of State; it has no c o n t i n u o u s or systematic contacts with California; and it h a s never conducted any advertising or marketing p u r p o s e f u l l y directed to, or targeted at, California r e s id e n ts . Because Private Label's contacts have been s p o r a d i c and minimal, Plaintiff Boswell does not claim P r iv a t e Label is subject to general jurisdiction. The issue is whether Private Label is subject to personal j u r i s d ic t io n on the basis [*11] that specific jurisdiction is p re se n t. B . Specific Jurisdiction S p e c i fic jurisdiction is analyzed under a three part te st: (1) Purposeful Availment: the n o n r e s id e n t defendant must do some act o r consummate some transaction with the fo r u m state or perform some act by which it purposefully avails itself of the privilege o f conducting activities in the forum state, t h e r e b y invoking the benefits and p r o te c tio n s of its laws; ( 2 ) Arising Out Of Forum-Related A c tiv itie s : the claim must be one which a r i s e s out of or relates to the defendant's fo r u m - re l a t e d activities; and ( 3 ) Reasonableness: the exercise of j u r is d i c tio n must comport with fair play a n d substantial justice, i.e. it must be r e a so n a b le .

Schwarzenegger v. Fred Martin Co., 374 F.3d 797, 802 (9 th Cir. 2004). P h y s ic a l presence is not required to establish s p e c i f ic jurisdiction. Haisten v. Grass Valley Med. R e i m b u r s e m e n t Fund, Ltd., 784 F.2d 1392, 1398 (9th C i r . 1986) (citing Burger King Corp. v. Rudzewicz, 471 U .S . 462, 475-77, 105 S. Ct. 2174, 85 L. Ed. 2d 528 ( 1 9 8 5 ) ); see also Calder v. Jones, 465 U.S. 783, 790, 104 S . Ct. 1482, 79 L. Ed. 2d 804 (1984). "[O]rdinarily 'use o f the mails, telephone, or other international c o m m u n ic a t io n s simply do not qualify as purposeful a c tiv ity invoking the benefits and [*12] protection of the

Page 4 2 0 0 8 U.S. Dist. LEXIS 66103, * [ fo r u m ] state.'" Peterson v. Kennedy, 771 F.2d 1244, 1 2 6 2 (9th Cir. 1985) (quoting Thomas. P. Gonzalez C o r p . v. Consejo Nacional de Produccion de Costa Rica, 6 1 4 F.2d 1247, 1254 (9th Cir. 1980)). " I n judging minimum contacts, a court properly fo c u s e s on 'the relationship among the defendant, the fo r u m , and the litigation.'" Calder, 465 U.S. at 789 ( q u o tin g Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2 5 6 9 , 53 L. Ed. 2d 683 (1977)); see also Rush v. S a v c h u k , 444 U.S. 320, 332, 100 S. Ct. 571, 62 L. Ed. 2d 5 1 6 (1980). "'An out-of-state act having an effect within th e state may be sufficient to support jurisdiction' in a n o n -to r t situation." Haisten, 784 F.2d at 1397-398 ( q u o tin g Forsythe v. Overmyer, 576 F.2d 779, 783 (9th C i r . 1978)(finding jurisdiction where defendant assumed p e r so n a l liability in the event of default on a contract e x p r e s s ly subject to jurisdiction in the forum state - the c o n tr a c t was expressly subject to interpretation under C a lifo r n ia law by California courts)). "Questions of p e r s o n a l jurisdiction admit of no simple solutions and th a t ultimately due process issues of reasonableness and f a i r n e s s must be decided on a case-by-case basis." F o r s y th e , 576 F.2d at 783 (citing Perkins v. Benguet C o n s o l. Mining Co., 342 U.S. 437, 446, 72 S. Ct. 413, 96 L . Ed. 485, 63 Ohio Law Abs. 146 (1952). 1 . [*13] Purposeful Availment In this first prong, the term "purposeful availment," i s often used in shorthand fashion, to include both p u r p o s e f u l availment and purposeful direction. S c h w a r z e n e g g e r, 374 F.3d at 802 (9th Cir. 2004). B e c a u s e this is a contract dispute, and not a tort claim, th e "purposeful availment" analysis is applied. Menken v. E m m , 503 F.3d 1050, 1057 (9th Cir. 2007). "The p u r p o s e f u l availment standard requires more than f o r e s e e a b i l it y of causing injury in another state." T e r r a c o m v. Valley Nat. Bank, 49 F.3d 555, 560 (9th Cir. 1 9 9 5 ) (citing Burger King, 471 U.S. at 474). "The f o r e s e e a b i l it y that is critical to due process analysis . . . is th a t the defendant's conduct and connection with the f o r u m state are such that he should reasonably anticipate b e in g haled into court there." Id. (quoting World-Wide V o l k sw a g e n Corp. v. Woodson, 444 U.S. 286, 297, 100 S. C t . 559, 62 L. Ed. 2d 490 (1980)). This prong "prevents d e fe n d a n t s from being haled into a jurisdiction through 'r a n d o m , ' 'fortuitous,' or 'attenuated' contacts." Id. ( q u o tin g Burger King, 471 U.S. at 475). T h is involves an inquiry into "whether a defendant 'p u r p o s e fu lly avails itself of the privilege of conducting a c tiv itie s ' or 'consummates a transaction' [*14] in the fo r u m , focusing on activities such as delivering goods or e x e c u tin g a contract in the forum state." Menken, 503 F . 3 d at 1057 (quoting Schwarzenegger, 374 F.3d at 8 0 2 ) . These actions reflect a non-resident defendant " p u r p o s e fu lly avail[ing] itself of the privilege of c o n d u c t in g activities within the forum State, thus i n v o k i n g the benefits and protections of its laws." H a n s o n v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L . Ed. 2d 1283 (1958). "In return for these 'benefits and p r o t e c t i o n s , ' a defendant must-as a quid pro quo-'submit t o the burdens of litigation in that forum.'" S c h w a r z e n e g g e r, 374 F.3d at 802 (citing Burger King, 4 7 1 U.S. at 476). F a c to r s the Supreme Court has established that must b e considered in their totality to determine whether a d e f e n d a n t purposefully established minimum contacts ( p u r p o s e f u l ly availed itself) with a forum are as follows: (1) prior negotiations; (2) contemplated co nse q ue nc es; future

( 3 ) the terms of the contract; and ( 4 ) the parties' actual course of d e a lin g .

Burger King, 471 U.S. at 479. Private Label purposefully a v a i le d itself to California jurisdiction. A . Prior Negotiations "[W ] i t h respect to interstate contractual obligations, . . . parties who 'reach out beyond one state [*15] and c r e a t e continuing relationships and obligations with c i tiz e n s of another state' are subject to regulation and s a n c t i o n s in the other State for the consequences of their a c tiv it i e s . " Burger King, 471 U.S. at 473, (quoting T r a v e le rs Health Ass'n v. Virginia, 339 U.S. 643, 647, 70 S . Ct. 927, 94 L. Ed. 1154 (1950)). W h e n considering contract negotiations ty p ic a lly consider the following factors: (1) extensiveness of negotiations; ( 2 ) location of negotiations; and ( 3 ) whether the defendant traveled to th e forum. courts

Naumes Inc. v. Alimentos Del Caribe, 77 F. Supp. 2d 1 1 5 8 , 1162 (D. Or. 1999) (citing Peterson v. Highland M u s i c , Inc., 140 F.3d 1313, 1320 (9th Cir. 1998)). No o n e factor is dispositive. Id. 1 . Extensive Negotiations Plaintiff Boswell argues that it engaged in extensive n e g o t i a t i o n s with Defendant thus demonstrating p u r p o s e fu l availment by Defendant Private Label. The p a r t i e s engaged in negotiations for over a dozen contracts

Page 5 2 0 0 8 U.S. Dist. LEXIS 66103, * f r o m June 11, 2003 through August 14, 2006. W h i l e B o s w e ll claims Private Label engaged in negotiations for o v e r a dozen contracts with it during that period, Private L a b e l contends these were solicited by Boswell. Boswell w a s the party that initially sought out Private Label's b u s i n e s s [*16] in New York. Boswell however, cites c o m m u n ic a t io n initiated by Private Label's president a f t e r Boswell's initial reaching out, regarding multiple p r o d u c t orders, proposed terms for future contracts, s h ip p in g terms, payment terms, and arranged return of s h i p p i n g bins. Boswell cites Private Label's choice to c o n tin u e negotiations once a relationship was established a s reflecting continued business dealings whereby B o s w e ll purposefully sought to do business with a New Y o r k customer. Boswell refers to a letter it received from P r iv a t e Label's counsel on September 21, 2007 as proof o f existence of these negotiations by Private Label. P r i v a t e Label did not originally reach out to Boswell t o initiate a business relationship, rather Boswell s o l i c i t e d business from Private Label. This is similar to th e California plaintiff in Roth v. Garcia Marquez, r e a c h i n g out to solicit business in Mexico. Roth v. Garcia M a r q u e z, 942 F.2d 617, 621 (9th Cir. 1991). Plaintiff B o s w e ll sought out customers outside of California and c r e a t e d a continuing product supplier relationship with P r iv a te Label. Boswell suggests the existence of in te r s ta t e negotiations supports a finding for purposeful a v a i lm e n t . This factor [*17] does not weigh in favor of p u r p o s e f u l availment. 2 . Location of Negotiations Defendant Private Label contends that the location o f the negotiations occurred either physically in New Y o r k , or that the negotiations were telephonic and mail c o m m u n i c a t i o n s . Private Label had no negotiations in C a l ifo r n ia . Private Label was to ultimately receive to m a t o products at its New York Plant. Boswell's s o l i c i t a t i o n s included calls and visits from its South C a r o l i n a Sales Manager, Mr. Nestvogel; the use of a N e w York based broker; and visitation to Private Label in New York by Boswell's corporate executives from C a lifo r n ia . B o s w e ll claims that regardless of its representatives' p h y s i c a l locations, Private Label knew it was negotiating c o n t r a c t s with a California based company and chose to n e g o t i a t e numerous contracts with Boswell. " W h e n a California business seeks out purchasers in o t h e r states . . . [and] deals with them by out-of-state a g e n ts or by interstate mail and telephone, it is not e n t i tl e d to force the customer to come to California to d e fe n d an action on the contract." Roth, 942 F.2d at 6212 2 (quoting Thomas. P. Gonzalez Corp., 614 F.2d at 1252). I n Roth, the plaintiff initiated negotiations [*18] and e n te r e d into a contract with the defendants, and claimed th a t negotiations went both ways, that phone lines were u s e d in the other direction-i.e., the defendants made calls a n d returned letters and faxes he received in California. R o t h , 942 F.2d at 622. The court recognized that many t r a n s a c t i o n s take place solely by mail or wire across state lin e s but the communications did not support a finding of p u r p o s e fu l availment because "[B]oth this court and the c o u r t s of California have concluded that ordinarily 'use o f the mails, telephone, or other international c o m m u n ic a t io n s simply do not qualify as purposeful a c t i v ity invoking the benefits and protection of the [ fo r u m ] state.'" Id. (quoting Peterson v. Kennedy, 771 F . 2 d at 1262); see also Thomas. P. Gonzalez Corp., 614 F . 2 d at 1253-54 (although the plaintiff, a California r e s id e n t , would suffer financial impacts in California, the p a r tie s ' use of mail and wire to negotiate a contract was in s u ffic i e n t to establish the purposeful availment prong fo r personal jurisdiction in California). T o determine where negotiations take place, the lo c a tio n where the substance of the relationship was f o r m e d is considered. McGlinchy v. Shell Chemical Co., 8 4 5 F.2d 802, 816 (9th Cir. 1988) [*19] (where a c o n tr a c t was determined to be negotiated in England, e v e n when it was signed in California, "[T]he substance o f the relationship was formed" in England). The s u b s ta n c e of the relationship here was formed by B o s w e ll in New York. Boswell hired a New York broker, a s did the plaintiff in Thomas P. Gonzalez Corp., where th e plaintiff hired an agent in Costa Rica to form a r e l a t i o n s h i p with a Costa Rican company. Thomas P. G o n z a l e z Corp., 614 F.2d at 1249. Boswell sent its East C o a s t Sales Manager and company executives to New Y o r k , as in Roth, where a representative traveled to M e x i c o to secure a contract. Roth, 942 F.2d at 621. N e g o tia t io n s between Boswell and Private Label are s im ila r to the negotiations between the parties in Roth, b e c a u s e Boswell pursued and solicited Private Label's b u s i n e s s in New York, and Private Label engaged in n e g o t i a t io n s after this solicitation. Private Label's normal u s e of mail, telephone and email to negotiate with B o s w e l l after Boswell specifically targeted Private L a b e l 's business in New York does not support s u b j e c t i n g Private Label to personal jurisdiction in C a lifo r n ia . This factor weighs against a finding for p u r p o s e fu l availment. The New York [*20] location of c o n tr a c t negotiations weighs against a finding for p u r p o s e f u l availment. 3 . Travel to Forum No representative of Private Label has ever traveled to California in relation to this contract. This factor w e i g h s against a finding of purposeful availment. 4 . Negotiation A l i m e n to s Conclusion: Naumes, Inc. v.

Page 6 2 0 0 8 U.S. Dist. LEXIS 66103, * A n Oregon District Court, in Naumes, was c o n fr o n te d with a similar situation to this case, where an O r e g o n pear seller claimed breach of contract by a C o l o m b i a n buyer who had placed three orders for s h i p m e n t s of pears from Oregon to Columbia. Naumes, 7 7 F. Supp. 2d at 1160. Other than two shipments, the C o l o m b i a n corporation had not advertised, had no agents i n , and had not done business in Oregon. Id. at 1161. T h e re were subsequent negotiations between the parties b y telephone and facsimile transmissions, but none of the C o l o m b i a n corporation's employees had ever been to O r e g o n . Id. The court found the plaintiff failed to make a p r i m a facie showing that the defendant had purposefully a v a i l e d itself of the privilege of conducting business in O r e g o n . Id. at 1163. The court identified relevant factors t o determine whether "a defendant involved in a breach o f contract for the sale [*21] of goods has purposefully a v a i le d itself of the forum's laws so as to justify the e x e r c i s e of specific personal jurisdiction over the d e fe n d a n t ," including: (1) W h o initiated the contact? ( 2 ) W h a t where the goods' origination a n d destination? ( 3 ) W h a t is the value of the goods in v o lv e d in the disputed transaction? ( 4 ) How many contacts did defendant h a v e with the forum? ( 5 ) W h e re did contract negotiation ta k e place? ( 6 ) Are there prior dealings or future c o n s e q u e n c e s anticipated between [the] p a r t i e s that relate to the contract in d is p u te ? N e w York to attend negotiation meetings. Defendant P r i v a t e Label's communications were responding to P la i n tiff Boswell's contact to Private Label in New York. E a c h contract is simple and straightforward with no fu tu r e or prior consequences contemplated, except for the d e l iv e r y of tomato paste products F.O.B. to the shipping p o i n t in Buttonwillow, California, and the return to C a lifo r n ia of the bins by Defendant Private Label, after u s e of the bins. Prior negotiations weighs against p u r p o s e f u l availment. B . Contemplated Future Consequences The second of the four factors for determining p u r p o s e f u l a v a i l m e n t is " c o n t e m p l a t e d futur e c o n s e q u e n c e s ." This prong is inherently important, and m a y trump other considerations. See Roth, 942 F. 2d at 622. I n Roth, a film maker filed a breach of contract a c t io n against a Mexican author and his agent. The court fo u n d that the future consequences of the contract was th e decisive factor since the contract involved the n e g o tia tio n of movie rights for a film that would be p r o d u c e d [*23] wholly in California over an extended p e r i o d of time. Id. at 621 ("The point here is simply that [ fo r ] the contract . . . most of the work . . . would have b e e n performed in California. . . . This is not an instance w h e r e the contract was a one-shot deal that was merely n e g o tia t e d and signed by one party in the forum; on the c o n tr a r y, most of the future of the contract would have c e n t e r e d on the forum."). I n Burger King, the Supreme Court found purposeful a v a i l m e n t when a franchisee entered into a carefully s t r u c t u r e d 20 - y e a r relationship that envisioned c o n tin u in g and wide-reaching contacts with a Floridab a s e d franchisor. Burger King, 471 U.S. at 480. The S u p r e m e Court considered the franchisee's "voluntary a c c e p ta n c e of the long-term and exacting regulation of h i s business from [the franchisor's] Miami headquarters," a n d determined "the 'quality and nature' of his r e la tio n s h i p to the company in Florida can in no sense be v ie w e d as 'random,' 'fortuitous,' or 'attenuated.'" Id. U n lik e Roth, or Burger King, Private Label contends its contracts with Boswell are simple. These contracts are in essence purchase orders for shipments of product, not l o n g term contracts with future consequences, [*24] nor d o they contemplate future transactions. Unlike the fr a n c h is e e in Burger King, Private label has not v o l u n t a r i l y accepted long-term or exacting oversight. B o s w e ll counters that Private Label contemplated t h e future consequences of its contractual relationship w h e n : Private Label agreed to delivery of the product F . O .B . shipping point in California; Private Label agreed to return Boswell's bins to Buttonwillow; Private Label r e q u e s te d more product in the future; and Private Label

Id. A p p ly in g these factors, Plaintiff Boswell initiated m o s t of the contacts with Defendant Private Label and s o lic ite d the sale of tomatoes in New York. The goods o r ig in a te d in California, and were destined initially for B u t t o n w i l l o w , California where legal title was tr a n s fe r r e d to Private Label, but the goods were u ltim a t e l y destined for New York. The value of the g o o d s involved in the transaction is significant, with d a m a g e being an alleged $ 633,127.97. Defendant P r iv a te Label's contacts with California were limited, as P r iv a te Label dealt primarily with Mr. Nestvogel, a New Y o r k broker, and Boswell's executives in New York. N e g o tia t io n s took place through [*22] phone, fax and e m a i l s . Any in-person negotiations involved Plaintiff B o s w e ll sending its top-level executives to New York or M r . Nestvogel (Boswell's East Coast Sales Manager) to

Page 7 2 0 0 8 U.S. Dist. LEXIS 66103, * m a d e payment at Buttonwillow. Boswell also cites the le tte r it received from Private Label's counsel on S e p te m b e r 21, 2007 which discusses and references the e x i s te n c e of a historical course of conduct between the p a r t i e s . Boswell contends these facts show Private L a b e l's relationship with Boswell cannot be viewed as " r a n d o m , " "fortuitous," or "attenuated," and could be in te rp r e te d as purposeful availment of the privilege of c o n d u c tin g activities within California. A lth o u g h the contracts at issue are stand-alone s e p a r a t e purchase orders, the parties conduct and actions r e fle c t contemplated future consequences. This factor w e i g h s in favor of finding purposeful availment. C . Contract Terms The third factor under [*25] purposeful availment c o n c e r n s the contract terms. Breach of contract terms by a n out-of-forum party, and foreseeable resulting injuries to a forum-residing party may support a finding for p u r p o s e f u l availment. Burger King, 471 U.S. at 480. In B u r g e r King, refusal to make contractually required p a ym e n ts in the forum-state was found to have caused f o r e s e e a b l e injuries to the franchisor in Florida. Id. The c o u r t held that "[I]t was, at the very least, presumptively r e a s o n a b le for [the franchisee] to be called to account th e re for such injuries." Id. C o n t r a c t u a l terms specifying F.O.B. in a forum state m a y support a finding for personal jurisdiction by the fo r u m state over an out-of-state defendant, but on its own i s not enough. Taubler v. Giraud, 655 F.2d 991, 995 (9th C i r . 1981). B o s w e ll alleges Private Label breached its contracts' p a y m e n t terms by failing to pay contractually agreed u p o n payments to Boswell in California. Boswell argues i t suffered foreseeable injuries in California from Private L a b e l's failure to pay. According to Burger King, such c o n d u c t makes it presumptively reasonable for Private L a b e l to be called to account in California for such i n j u r i e s . Burger King, 471 U.S. at 480. [*26] A d d itio n a l ly , the F.O.B. terms in the contracts at issue s u p p o r t a finding for purposeful availment. The contract t e r m s weigh in favor of purposeful availment. D . Actual Course of Dealing The last purposeful availment factor is the parties' c o u r s e of dealing. If the parties course of dealing reflects r e p e a te d confirmation that a forum-based party's actual d e c i s i o n - m a k i n g authority was vested in the forum, it s u p p o r t s a finding of purposeful availment of the nonf o r u m - b a s e d party in the forum. Id. at 480-81. I n Burger King, the franchisee alleged it dealt with a lo c a l Michigan-based office of the franchisor, and t h e r e f o r e , did not purposefully avail itself of any benefits i n the franchisor's headquarters' location in Miami, F l o r i d a . Id. at 480. The Supreme Court noted that a l th o u g h the franchisee claimed he was dealing with the fr a n c h is o r only in Michigan, actual course of dealing r e fle c te d that the franchisor's office in Michigan "served la r g e ly as an intermediate link" between M i c h ig a n and M ia m i, the location of the franchisor's office. The S u p r e m e Court found the franchisee had purposefully a v a i le d himself to Florida's personal jurisdiction noting: When problems arose . . . [the fr a n c h is e e ] [*27] learned that the M ic h i g a n office was powerless to resolve t h e i r disputes and could only channel their c o m m u n ic a t io n s to Miami. Throughout th e s e disputes, the Miami headquarters a n d the Michigan franchisee carried on a continuous course of direct c o m m u n i c a t i o n s b y m a i l a n d by t e l e p h o n e , and it was the M i a m i h e a d q u a r t e r s th a t m a d e th e k e y n e g o ti a t in g decisions out of which the in s ta n t litigation arose.

Id., at 480-81 (emphasis added). P r iv a te Label contends negotiations were conducted w i t h Boswell's sales representative, Mr. Nestvogel, lo c a te d in South Carolina; or with two of Boswell's e x e c u t i v e s who traveled to New York to solicit Private L a b e l's business. Both Private Label and Boswell agree th a t Mr. Nestvogel carried out many of the negotiations w i th Private Label. Unlike in Burger King, when p r o b l e m s arose, Private Label did not channel c o m m u n i c a t i o n directly to Plaintiff Boswell in California b y mail, telephone, or any other medium. Instead D e f e n d a n t Private Label continued communications with M r . Nestvogel in South Carolina. Mr. Nestvogel had d e c i s io n -m a k i n g authority so Private Label did not have to channel its communications directly to California. B o s w e l l contends however that [*28] Private Label k n e w it was not only dealing with its New York broker, b u t it was conducting business with a sales representative o f a California company, albeit South Carolina-based. T h e s e facts evidence the parties' course of dealing r e fle c t in g that Boswell made no effort to relate the tr a n sa c tio n to California. T h e actual course of dealing weighs against a fin d in g for purposeful availment. W e i g h in g the factors, t h e purposeful availment prong is met. 2 . Arising Out Of Or Relating to Forum-Related A c t iv i tie s "The second prong of the specific jurisdiction test is m e t if 'but for' the contacts between the defendant and the f o r u m state, the cause of action would not have arisen."

Page 8 2 0 0 8 U.S. Dist. LEXIS 66103, * T e r r a c o m v. Valley Nat. Bank, 49 F.3d 555, 561 (9th Cir. 1 9 9 5 ), (quoting Shute v. Carnival Cruise Lines, 897 F.2d 3 7 7 , 385-86 (9th Cir. 1990), rev'd on other grounds, 499 U . S . 585, 111 S. Ct. 1522, 113 L. Ed. 2d 622 (1991)). T h e contacts leading to the contracts were in New York b y Boswell, a California LLC. To the extent California to m a to paste was to be shipped, and payment received by B o s w e ll, the transactions arise out of forum related a c tiv itie s. This prong is satisfied. 3 . Reasonableness The third prong of the test, reasonableness, is p r e su m e d [*29] once the court finds the first purposeful a v a i l m e n t prong. Ballard v. Savage, 65 F.3d 1495, 1500 (9 th Cir. 1995) ("[W ] e presume that an otherwise valid e x e r c i s e of specific jurisdiction is reasonable."). The b u r d e n of proving unreasonableness shifts to the d e f e n d a n t . See id. In order to defeat personal jurisdiction, th e defendant "must present a compelling case that the p r e se n c e of some other considerations would render j u r is d ic tio n unreasonable." Burger King, 471 U.S. at 477. T h e strength of a purposeful availment showing versus a r e a so n a b l e n e s s showing are closely correlated. W illia m S c h w a r z e r , et al., Cal. Prac. Guide: Federal Civil P r o c e d u r e Before Trial, Ch. 3-58 (The Rutter Group 2 0 0 5 ) ("The weaker the plaintiff's showing of purposeful a v a i lm e n t and relatedness to forum related acts, the less a d e fe n d a n t need show in terms of reasonableness to defeat j u r is d i c t io n ; and vice versa.") (citing Burger King, 471 U . S . at 477). However, "Defendants must show that any a s s e r t e d unfairness could not be alleviated by less r e s tr ic tiv e means such as conflict of law rules or an a c c o m m o d a t i n g venue transfer." Doe v. Geller, 533 F. S u p p . 2d 996, 1006 (N.D. Cal. 2008) (citing Burger K i n g , 471 U.S. at 476-78). J u r is d i c t io n [*30] is reasonable if "under the totality o f the circumstances the defendant could reasonably a n t ic i p a t e being called upon to present a defense in a d i s ta n t forum." FDIC, 828 F.2d at 1442. The Ninth C i r c u i t applies a seven factor test to ascertain r e a s o n a b le n e s s : (1) the extent of the defendants' p u r p o s e fu l interjection into the forum s ta t e 's affairs; ( 2 ) the burden on the defendant of d e fe n d in g in the forum; ( 3 ) the extent of conflict with the s o v e r e ig n ty of the defendants' state; ( 4 ) the forum state's interest in a d j u d i c a tin g the dispute; ( 5 ) the most efficient r e s o l u t i o n of the controversy; judicial p la i n tiff's interest in e ffe c t iv e relief; and convenient and

( 7 ) the existence of an alternative fo ru m .

Harris Rutsky & Co. Insurance Services Inc. v. Bell & C l e m e n ts Ltd., 328 F.3d 1122, 1132 (9th Cir. 2003). P r iv a te Label has not presented a compelling case that C a lifo r n ia jurisdiction is unreasonable. A . Purposeful Interjection into California's Affairs Although a court may have found purposeful a v a ilm e n t by a non-resident party, "[T]he degree of in te r j e c tio n is nonetheless a factor in assessing the o v e r a l l reasonableness of jurisdiction under this prong." H a r r is Rutsky, 328 F.3d at 1132 (9th Cir. 2003)(citing [ * 3 1 ] Ins. Co. of N. Am. v. Marina Salina Cruz, 649 F.2d 1 2 6 6 , 1271 (9th Cir. 1981)). A contract alone is not s u ffic i e n t to establish purposeful interjection into a forum s t a t e . FDIC, 828 F.2d at 1443 (citing Burger King, 471 U .S . at 478-79; Hirsch v. Blue Cross, Blue Shield, 800 F . 2 d 1474, 1480 n.3 (9th Cir. 1986)). Instead, "[T]he n e g o tia tio n s and contemplated future consequences of t h e contract (i.e., whether continuing contacts with C a l i fo r n i a were envisioned) must be considered in a n a l y z i n g [a defendant's] purposeful interjection of its a c tiv itie s into California." Id. (citing Burger King, 471 U .S . at 479). B o s w e l l contends Private Label engaged in n u m e r o u s negotiations and contemplated future c o n s e q u e n c e s when Private Label agreed to delivery of t h e product F.O.B. at Buttonwillow, California. A d d i t io n a l l y , Boswell cites other actions by Private L a b e l as evidence of contemplated future consequences d u e to their contractual relationship. These include: P r i v a t e Label agreeing to return Boswell's bins to B u t t o n w i l l o w , California; Private Label's requests to p u r c h a s e additional product in the future; and Private L a b e l 's payments to Buttonwillow, California. Boswell a l s o cites the letter [*32] it received from Private Label's c o u n s e l on September 21, 2007 which discusses the p a r t i e s "course of dealing established by the parties." P r i v a t e Label contends it did not interject itself into C a l i fo r n i a 's affairs because it was solicited by Boswell in N e w York through a New York based broker, Boswell's E a s t Coast Sales Manager, and Boswell's executives who t r a v e l e d to New York. Private Label contends it n e g o t i a t e d these contracts in New York and that the bulk o f all communications either occurred with Boswell's N e w York Broker, or with Mr. Nestvogel who was in S o u t h Carolina. T h e parties' negotiations and communications reflect t h a t Private Label contemplated continuing contacts with

( 6 ) the importance of the forum to the

Page 9 2 0 0 8 U.S. Dist. LEXIS 66103, * C a lifo r n ia . The contracts at issue are simple one-time p u r c h a s e s , by which Private Label has used Boswell's s e r v i c e s a total of twelve times. See FDIC, 828 F.2d at 1 4 4 3 (where the Ninth Circuit found no purposeful in te r j e c tio n and noted "[N]o future relationship was c o n te m p la te d ; the contract was simply a one-time a g r e e m e n t " ) . H o w e v e r , altho u g h the co n t r a c t s t h e m s e l v e s do not mention any long term agreement, n e g o ti a tio n s and contemplated future consequences of t h e contracts between the parties reflect [*33] e n v i s i o n e d continuing contacts with California. This fa c to r weighs in favor of finding California jurisdiction r e a so n a b le . B . Non-Resident's Burden on Litigation in Forum State The second factor under the reasonableness prong, is c o n c e r n e d primarily with the burden on defendant in l i ti g a t i n g in the forum states. Ins. Co. of N. Am., 649 F.2d a t 1272. Private Label contends the burden for it to d e f e n d in California is high because it has no offices, e m p lo y e e s , agents, or representatives, in the State of C a l i fo r n i a , and it does not visit the state regularly. P r iv a te Label has its principal place of business in New Y o r k . CE Distrib., LLC v. New Sensor Corp., 380 F.3d 1 1 0 7 , 1112 (9th Cir. 2004) (where the Ninth Circuit fo u n d this factor weighed slightly in favor of a New Y o r k defendant against litigating in Arizona, but that any b u r d e n is substantially less than in days past). However, c o u r t s have found that mo d e r n ad v a n c e s in c o m m u n ic a t io n s and travel have sufficiently reduced the b u r d e n of litigating outside of a defendant's home state. S e e Sher v. Johnson, 911 F.2d 1357, 1365 (9th Cir. 1 9 9 0 ) ("In this era of fax machines and discount air t r a v e l , requiring the partnership to defend itself [*34] in C a l i fo r n i a . . . would not be so unreasonable as to violate d u e process."). Although Private Label claims it would b e an extremely heavy burden for it to litigate in C a l i fo r n i a , transportation and technology will mitigate th e burden. C . Conflict W i t h Sovereignty This factor does not need to be considered except w h e n foreign participants are litigating. But see Amoco E g y p t Oil Co. v. Leonis Navigation. Co., 1 F.3d 848, 852 (9 th Cir. 1993) ("W h e r e , as here, the defendant is from a f o r e i g n nation rather than another state, the sovereignty b a rr ie r is high and undermines the reasonableness of p e r s o n a l jurisdiction") (citing Pac. Atl. Trading Co. v. M /V Main Express, 758 F.2d 1325, 1330 (9th Cir. 1 9 8 5 ) ). D . Forum's Interest in Adjudicating Dispute This factor weighs in favor of Plaintiff Boswell b e c a u s e California does have a manifest interest in a d j u d ic a t in g disputes such as this where one of its c i t iz e n s is harmed. Burger King, 471 U.S. at 473; Cal. S o ftw a r e Inc. v. Reliability Research, Inc., 631 F. Supp. 1 3 5 6 , 1363 (9th Cir. 1986) (noting that the State of C a lif o r n ia has a strong interest in protecting the rights of its injured citizens). E . Most [*35] Efficient Judicial Resolution of the C o n tro v e rs y Efficiency of forum, the fifth factor, is evaluated by lo o k in g at where the witnesses and the evidence are l i k e l y to be located. Core-Vent Corp. v. Nobel Indus. AB, 1 1 F.3d 1482, 1489 (9th Cir. 1993). Private Label c o n t e n d s the most efficient forum is New York because th e negotiations for the contracts took place in New Y o r k , after which the executed contracts were sent to C a l i fo r n i a , and more witnesses are in New York. Private L a b e l notes Boswell's sales broker is in New York, and M r . Nestvogel is in South Carolina. This factor cuts both w a ys as evidence and witnesses will be located in New Y o r k and California. However, an important witness, B o s w e ll's New York broker, is located in New York. T h i s factor weighs in favor of Defendant Private Label. F . Importance of Forum to Party's Interest in Convenient a n d Effective Relief The Ninth Circuit has noted that "[T]his factor is 'not o f paramount importance.'" CE Distribution, LLC v. New S e n so r Corp., 380 F.3d 1107, 1112 (9th Cir. 2004) ( c itin g Harris Rutsky, 328 F.3d at 1133). Plaintiff B o s w e ll claims this factor weighs heavily in its favor as it is located in the forum state, and California [*36] is w e ll suited to provide relief for breach of contract in j u r ie s suffered by its citizens. However, Boswell has s h o w n in the past that it is not inconvenient for its r e p r e s e n ta tiv e s to travel to New York, nor is there a s h o w i n g that there will be a lack of effective relief in N e w York as no issue is raised of unenforceability due to l a c k of a foreign jurisdiction. See Haisten, 784 F.2d at 1 4 0 2 (where Ninth Circuit noted that plaintiff's claimed u n e n fo r c e a b ility due to foreign jurisdiction could be o v e r c o m e by posting bond). Boswell has not shown the c o n tr a c t breach action cannot be remedied in New York. S e e Sinatra v. Nat'l Enquirer, Inc., 854 F.2d 1191, 12000 1 (9th Cir. 1988) (where the plaintiff did not show m i s a p p r o p r ia tio n could be effectively remedied in an a l t e r n a t e forum). This factor is neutral. G . Existence of an Alternative Forum "The plaintiff bears the burden of proving the u n a v a ila b ility of an alternative forum." Harris Rutsky, 3 2 8 F.3d at 1134 (citing Nobel, 11 F.3d at 1490). B o s w e l l has not met this burden here. However, Boswell d o e s not need to meet this burden since this factor cannot o v e r c o m e the other factors which favor the forum state. D e c k e r Coal Co. v. Commonwealth Edison Co., 805 F.2d

Page 10 2 0 0 8 U.S. Dist. LEXIS 66103, * 8 3 4 , 841 (9th Cir. 1986) [*37] ("[T]his factor cannot o v e r c o m e the others which favor [the forum state's] j u r is d i c t i o n . " ) . A p p l y i n g the seven factors, jurisdiction is r e a s o n a b l e ; and any concerns regarding unfairness are a l l e v i a t e d through an accommodating venue transfer. See D o e v. Geller, 533 F. Supp. 2d 996, 1006 (N.D. Cal. 2 0 0 8 ) (citing Burger King, 471 U.S. at 476-78). A p p l y i n g the three-prong specific jurisdiction test to d e te rm i n e personal jurisdiction results in a finding of p e r s o n a l jurisdiction over Defendant Private Label. D e fe n d a n t 's motion to dismiss on the basis of the la c k of personal jurisdiction is DENIED. 6 . Motion to Transfer Venue Analysis Defendant Private Label alternatively brings a m o t io n to transfer venue pursuant to 28 U.S.C. § 1404(a). S e c tio n 1404(a) provides: "For the convenience of parties a n d witnesses, in the interest of justice, a district court m a y transfer any civil action to any other district or d iv is io n where it might have been brought." 28 U.S.C. § 1 4 0 4 (a ) (2008). D e f e n d a n t argues that transfer of this action is w a r r a n t e d because the W e s t e r n District of New York is th e venue where Private Label has its principal place of b u s in e ss , where the business relationship at issue was n e g o tia te d [*38] and entered into, where key witnesses r e s id e , including Plaintiff' New York broker, and the a c tio n would be litigated more inexpensively in New Y ork. T h e decision whether to transfer venue lies in the d i s c r e t i o n of the district court. GNC Franchising, 211 F . 3 d at 498. "The defendant must make a strong showing o f inconvenience to warrant upsetting the plaintiff's c h o ic e of forum." Decker Coal, 805 F.2d at 843. I n ruling on a motion to transfer, a district court m u s t consider each of the factors enumerated in § 1 4 0 4 (a ): convenience of the parties, convenience of the w i t n e s s e s , and the interests of justice. Ventress, 486 F.3d a t 1118. "Under § 1404(a), the district court has d i s c r e t i o n 'to adjudicate motions for transfer according to a n individualized, case-by-case consideration of c o n v e n ie n c e and fairness.'" GNC Franchising, 211 F.3d a t 498 (citation omitted). "A motion to transfer venue u n d e r § 1404(a) requires the court to weigh multiple f a c t o r s in its determination whether transfer is a p p r o p r ia te in a particular case." Id. The court may c o n s id e r : (1) the location where the relevant a g r e e m e n ts were negotiated and executed, ( 2 ) the state that is most familiar with the g o v e r n in g law, (3) [*39] the plaintiff's c h o i c e of forum, (4) the respective parties' c o n t a c t s with the forum, (5) the contacts r e l a t i n g to the plaintiff's cause of action in t h e chosen forum, (6) the differences in th e costs of litigation in the two forums, ( 7 ) the availability of compulsory process t o compel attendance of unwilling nonp a r t y witnesses, and (8) the ease of access t o sources of proof.

Id. at 498-499. " A s part of this inquiry, the court should consider p r iv a t e and public interest factors affecting the c o n v e n ie n c e of the forum." Decker Coal, 805 F.2d at 8 4 3 . Private factors include the "relative ease of access to s o u r c e s of proof; availability of compulsory process for a t te n d a n c e of unwilling, and the cost of obtaining a tte n d a n c e of willing, witnesses; possibility of view of p r e m is e s , if view would be appropriate to the action; and a l l other practical problems that make trial of a case easy, e x p e d itio u s and inexpensive." Id. (citing Gulf Oil Corp. v . Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 91 L. Ed. 1 0 5 5 (1947)). P u b lic factors include "the administrative difficulties f l o w i n g from court congestion; the 'local interest in h a v i n g localized controversies decided at home'; the i n t e r e s t in having the trial of a diversity case [*40] in a fo r u m that is at home with the law that must govern the a c tio n ; the avoidance of unnecessary problems in conflict o f laws, or in the application of foreign law; and the u n fa i r n e s s of burdening citizens in an unrelated forum w ith jury duty." Id. (citing Piper Aircraft Co. v. Reyno, 4 5 4 U.S. 235, 241 n.6, 102 S. Ct. 252, 70 L. Ed. 2d 419 ( 1 9 8 1 ) ). T h e party seeking transfer bears the burden of s h o w i n g the balance of convenience clearly favors t r a n s f e r . Futures Trading Comm'n v. Savage, 611 F.2d 2 7 0 , 279 (9th Cir. 1979). Transfer of venue under the law o f the Ninth Circuit based on forum non conveniens p u r s u a n t to section 1404(a) is "an exceptional tool to be e m p lo y e d sparingly." Ravelo Monegro v. Rosa, 211 F.3d 5 0 9 , 514 (9th Cir. 2000). A strong presumption exists in f a v o r of the plaintiff's choice of forum. Creative Tech., L td . v. Aztech Sys. Pte., Ltd., 61 F.3d 696, 703 (9th Cir. 1 9 9 5 ). R e la tiv e Ease of Access to Sources of Proof The location of the relevant documents and sources o f proof weigh in favor of transfer. The negotiations p r im a r ily took place in each party's respective home s ta te s . However, these were coupled with several m e e t in g s in New York, but the agreements were n e g o t i a t e d in the modern-age of technology, [*41] th r o u g h telephone calls and e-mails. The relevant

Page 11 2 0 0 8 U.S. Dist. LEXIS 66103, * d o c u m e n t s and any sources of proof are located in both C a lifo r n ia and New York. There is no indication that p r o h i b i t o r y costs in exchanging relevant documents fa v o r s one party's forum over the other. This factor w e i g h s evenly for either forum because it is easy to a c c e s s any of the required documents in either state. A v a ila b ility of Compulsory Process for Attendance of U n w illin g Witnesses Neither party presents evidence of unwilling w itn e ss e s who would require the W e ste rn District of N e w York District Court or the Eastern District of C a lifo r n ia District Court to compel their attendance or be u n a b l e to compel them to testify. Boswell's broker is in N e w York, so compulsory service would be available in N e w York over this witness but no indication is given t h a t this witness is hostile. Boswell's Sales Manager is in S o u th Carolina and may be deposed there. He cannot be c o m p e l le d to appear at trial in New York or California. C o s t of Obtaining Attendance of Willing Witnesses Defendant Private Label contends key witnesses are lo c a te d primarily in New York, including its executives a n d Plaintiff Boswell's East Coast Sale Manager (located in South [*42] Carolina). Plaintiff Boswell contends its e m p lo y e e s are located in California. Neither party has p r o v i d e d details of the testimony these witnesses will c o v e r . Party witnesses presumably will be able to testify a n d less weight is given in determining convenience of p a r ty witnesses. The fact that both parties have witnesses i n each of their respective states provides no weight in e i th e r 's favor in terms of convenience of parties' w itn e s s e s . P r iv a t e Label also identifies Boswell's New York p r o d u c e broker as a non-party witness. This sole nonp a r ty witness's presence at trial will be more convenient i n the W e s t e r n District of New York. See Gundle v. F ir e m a n 's Fund Ins. Co., 844 F. Supp. 1163, 1166 (S.D. T e x . 1994) ("It is the convenience of non-party witnesses, r a t h e r than that of employee witnesses, however, that is th e more important factor and is accorded greater w e i g h t. " ) . P r a c t ic a l Problems That Make Trial of a Case Easy, E x p e d i tio u s And Inexpensive The purpose of 28 U.S.C. 1404(a) "is to prevent the w a s t e of time, energy and money and to protect litigants, w i t n e s s e s and the pub l i c against unnecessary in c o n v e n ie n c e and expense." Van Dusen v. Barrack, 376 U .S . 612, 616, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964) ( c ita tio n and [*43] internal quotation marks omitted). H o w e v e r , transfer will not be allowed merely to shift the i n c o n v e n i e n c e from one party to another. Decker Coal, 8 0 5 F.2d at 843. The party seeking transfer bears the b u r d e n of showing that after applying these factors, the b a l a n c e of convenience clearly favors transfer. Futures T r a d in g Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1 9 7 9 ); see also Decker Coal, 805 F.2d at 843 ("The d e f e n d a n t must make a strong showing of inconvenience to warrant upsetting the plaintiff's choice of forum."). P r iv a te Label requests venue be moved from C a l ifo r n ia to New York to avoid the unnecessary i n c o n v e n i e n c e and expense it contends would occur if tr a v e l is necessary from Private Label's principle place of b u s i n e s s in New York. Additionally, Private label asserts k e y witnesses including Plaintiff's sales broker reside in N e w York and most of the events giving rise to the c la im s at issue occurred in New York, and therefore, u n n e c e s s a r y cost and inconvenience would be incurred if P r iv a te Label was forced to litigate in California. B e c a u s e Boswell has pursued Private Label's business by s e n d i n g agents to New York, telephoning Private Label, a n d hiring a New York broker, [*44] it is clear New Y o r k jurisdiction will not merely shift the burden to B o s w e ll as Boswell has demonstrated no burden in doing b u s in e s s in New York. A s for the means of the parties, there is no indication b y either party that it is financially incapable of litigating th is matter in either forum. Although Private Label states th a t it would face financial hardship, neither party raised t h e issue of financial inferiority in oral argument. Private L a b e l does not contend that it is a smaller company in c o m p a r i s o n to Defendant Boswell, though it does state in its accompanying declaration that the company is a fa m ily -o w n e d business with two shareholders, husband a n d wife, Frank and Bonnie Lavorato, who founded the c o m p a n y. (Doc. 8, Lavorato Decl. PP 3, 6.) Private Label c o n te n d s that it will be extremely time consuming and e x p e n s iv e to defend itself in California due to the travel a n d time required by the president of the company. ( L a v o r a to Decl. P 23.) W h e n a disparity exists between th e means of the party, the court may consider such m e a n s in determining where the suit should proceed. See P e n n w a l t Corp. v. Purex Indus., Inc., 659 F. Supp. 287, 2 9 0 (D. Del. 1986) (small company in process of [*45] l i q u i d a t i o n with only 16 employees); 800-Flowers, Inc. v . Intercontinental Florist, Inc., 860 F. Supp. 128, 135 (S .D . N .Y . 1994) (ICF had been in business less than a y e a r with a single place of business, while 800-Flowers h a d offices nationwide, with far greater capital). Private L a b e l's assertion that it would be financially difficult for it to litigate in California slightly favors a transfer of v e n u e to New York. There do not appear to be an any o t h e r practical problems favoring one jurisdiction over th e other. A d m in is tr a t i v e C o n g e stio n D iffic u ltie s Flowing From Court

The court congestion is arguably higher in the E a s te r n District of California, which has one of the

Page 12 2 0 0 8 U.S. Dist. LEXIS 66103, * h ig h e st case loads in the country. A New York action w i l l face less court congestion and delay. L o c a l Interest California has an interest in having this controversy d e c i d e d in California. See Naumes, 77 F. Supp. 2d at 1 1 6 4 (where the court noted because goods originated in th e forum, the forum has an interest in adjudicating the d i s p u t e ) . Plaintiff Boswell is a company located in C a l i fo r n i a , claiming harm. California has an interest in d e c i d i n g this case. Burger King, 471 U.S. at 473 ("A s ta te generally has a 'manifest interest' [*46] in p r o v id in g its residents with a convenient forum for r e d r e s s i n g injuries inflicted by out-of-state actors."); see a ls o Lee v. Corr. Corp. of Am., 525 F. Supp. 2d 1238, 1 2 4 5 n.6 (D. Haw. 2007) (where the court found proper j u r i s d i c t i o n in Mississippi but noted that Hawaii p o s s e ss e d an interest because the action involved a H a w a i i inmate). I n te r e s t in Having the Trial of a Diversity Case in a F o r u m That is at Home With the Law That Must Govern th e Action The agreement itself does not provide for the a p p lic a tio n of either state's law, or for a choice of forum. T h e re is no clear indication in the contract language that th e parties intended to have either state serve as the fo r u m for litigation. The contract fails to specify the p a r t i e s ' choice of "venue" or "jurisdiction." T h e Ninth Circuit has held that a "federal court e x e r c is in g diversity jurisdiction, [applies] California's c h o ic e -o f-la w principles to determine the body of s u b s ta n t iv e law that applies to [the] interpretation of [a c o n tr a c t] ." Welles v. Turner Entm't Co., 503 F.3d 728, 7 3 8 (9th 2007) (citing Klaxon Co. v. Stentor Elec. Mfg. C o . , 313 U.S. 487, 496, 61 S. Ct. 1020, 85 L. Ed. 1477 ( 1 9 4 1 ) ). Absent an express choice of applicable law by th e parties, California [*47] law states "A contract is to b e interpreted according to the law and usage of the place w h e r e it is to be performed; or, if it does not indicate a p la c e of performance, according to the law and usage of th e place where it is made." Cal. Civ. Code § 1646 ( 2 0 0 8 ) . Due to the F.O.B. terms of the contracts at issue, d e l iv e ry of the goods was called for in California, as was p a y m e n t . Performance was to take place in California. C a lifo r n ia has an interest in applying California Law. D e c is io n on Transferring Venue The following factors weigh against transfer of v e n u e : a California district court is more familiar with a p p l i c a b l e California state laws, albeit this is a simple c o n tr a c t dispute; plaintiff's choice of forum is to be given w e igh t. T h e following factors weigh in favor of transfer of v e n u e to New York to serve the interests of justice and c o n v e n i e n c e of parties: the agreement was negotiated in b o th states but in-person meetings occurred in New Y o r k ; the convenience of party witnesses is slightly more b u r d e n s o m e to Defendant Private Label if jurisdiction is in California; the convenience of the parties in terms of fin a n c i a l burden weighs slightly in favor of Defendant P r iv a te Label; and [*48] the New York federal court is le ss congested. T h e California District Court has federal subject m a t te r jurisdiction under 28 U.S.C. § 1332: The parties a r e citizens of different states and more than the j u r i s d i c t i o n a l amount is in dispute. One of the parties to th e contract is a California corporation. The contract was p a r tly performed in California. There is no legal im p e d i m e n t to a § 1404(a) transfer, as the original suit c o u ld have been brought in New York. Sufficient C a lifo r n ia contacts exist to provide personal jurisdiction o v e r Private Label, by reason of its contract with Boswell w h i c h Private Label knew was headquartered in C a l i fo r n i a , and both delivery and payment were in C a lifo r n ia . I t is appropriate to grant Defendant's motion to tr a n s fe r pursuant to 28 U.S.C. § 1404(a). Defendant's m o tio n to transfer venue is GRANTED. 7 . CONCLUSION For all the reasons stated above, D e fe n d a n t's Motion to Dismiss pursuant to Fed. R. C i v . P. 12(b)(2) is DENIED. D e fe n d a n t's Motion to Transfer pursuant to 28 U .S .C . § 1404(a) is GRANTED. I T IS SO OR